Suspect talked to police, but was not told of existing arrest warrant

WEST CHESTER — When is an arrested person not under arrest? And how much information about his arrest status is a police investigator obligated to give a suspect before asking him questions about an alleged crime?

Those are issues that a Chester County Common Pleas Court judge is being asked to sort through in the criminal case against a Downingtown man accused of raping a female acquaintance at her West Chester home after a night of drinking.

And Judge David Bortner on Thursday indicated he had profound difficulties with the way in which West Chester detectives approached their questioning of the suspect, 23-year-old Orobosa Izineg “Robbie” Enagbare — questioning that allegedly produced an incriminating statement implicating him in the rape.

“He was lulled into a false sense of security,” Bortner told Assistant District Attorney Max O’Keefe at Enagbare’s pre-trial suppression hearing. “He was under arrest; they just hadn’t told him.”

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According to the record of the hearing, police had developed enough of a case against Enagbare to ask Magisterial District Judge Lori Donatelli to sign and issue an arrest warrant on May 30 on two counts of rape, two counts of aggravated indecent assault, indecent assault, and sexual assault. Two women had complained that he had sexually assaulted them while they were sleeping, and Enagbare had told them at separate times that he had “(messed) up.”

But when Detective Stan Billie and Detective Sgt. Louis DeShullo sat down with Enagbare the next day at the Avondale Fire Co., where he worked as an EMT, they did not tell him of the existence of the warrant, and did not read him his Miranda warnings. Over the course of 47 minutes, Enagbare spoke to the pair of investigators, answered their questions, and ultimately implicated himself in at least one of the incidents.

At the conclusion of the interview, Billie told Enagbare of the arrest warrant and asked him to return with them to the West Chester Police station for processing. He did.

Enagbare’s attorney, Gina A. Capuano of Philadelphia, made a motion to suppress his statement, keeping the jury at his upcoming trial on rape charges from hearing testimony about it. She said in the motion that Billie had every intention of arresting Enagbare at the time of the questioning but did not tell him that.

Thus, she maintains that he was not properly notified of his rights under the Miranda case to remain silent or to have an attorney present for questioning. “Once that arrest warrant was issued, they violated Miranda by talking to him” without reading him his rights, Capuano told Bortner.

But O’Keefe, the prosecuting attorney, argued to Bortner that the legality of the questioning and use of the statement depended on whether Enagbare was in police custody at the time of the interview. He contended that he was not.

Billie and DeShullo both testified on Thursday that they had a “cordial” conversation with Enagbare when they met him at the Avondale fire station in the early afternoon of May 31. Billie told him that he was not in custody, that he could leave the interview at any time, and that he could ask the officers to leave if he wished. Billie testified that had Enagbare been called to respond to an emergency during the interview, he would have allowed him to go.

He was not cuffed, and he was not threatened with arrest, Billie said.

“The Commonwealth’s position is and will be that the existence of the arrest warrant has no bearing and what the defendant believed” about whether he was in custody,” O’Keefe said. And that, the prosecutor told the judge, is all that matters according to case law – whether “the individual being interrogated reasonably believes his freedom of action is being restricted.”

Bortner will have the task of ruling on the question of whether police have a duty to tell a suspect of an active arrest warrant for him before proceedings wit an interrogation; both O’Keefe and Capuano said they were unable to find an case law that dealt specifically with that question.

It is settled law that suspects in custody must be given their Miranda rights to refuse to answer questions. Those who are not in custody, however, are not afforded the same consideration.

Thus, someone taken in handcuffs and locked in a police cell is legally in custody. Someone asked to sit in a police cruiser but told they are free to leave is not.

One criminal defense attorney, who spoke on the condition of anonymity because he was not authorized to comment on he record, said that the presence of the arrest warrant makes the matter of police custody “tricky”.

“The words, ‘you are free to leave” are normally the magic words,” between someone in custody and someone who is not, the attorney said. “But the warrant changes the dynamic a lot. Normally, there is questioning in anticipation of getting the warrant.”

But, the attorney said, it is also “black letter law” that police can lie to suspects during questioning - essentially what Billie and DeShullo did with Enagbare They can tell a suspect that an accomplice has fingered them in a crime when he or she has not, for example.

But case law also provides limits to what a police officer can lie about.

In a 1974 Pennsylvania case involving a Philadelphia murder, the late state Supreme Court Justice Robert N.C Nix Jr. wrote that “where subterfuge is so reprehensible as to offend basic societal notions of fairness, (a) confession obtained thereby should be excluded.”

Bortner on Thursday did not say which way he would rule in the case, but indicated that he was distressed by the way the case proceeded. “What was left to do to determine whether to arrest this person?” he asked.

The warrant had already been issued, and any police officer could have taken Enagbare into custody. “What’s left to investigate?

“I am at a loss to think why they didn’t interrogate him before they issued an arrest warrant,” the judge said. “I am just at a loss.”

No matter which way the judge rules on the suppression of the statement Enagbare will likely still face a trial based on the other evidence the authorities have against him.

According to the signed arrest warrant, on May 27 a 21-year-old woman reported being assaulted by Enagbare. She told police she knew him because he was a friend with her boyfriend, and that they met at West Chester bar after she had been drinking and as “highly intoxicated.”

She asked Enagbare to walk to her house on South Church Street for safety. She said that she then recalled being woken on a couch in her house, finding Enagbare on top of her trying to have sex with her. She tried to push him off but could not.

In a subsequent phone conversation that was taped by police, the woman, whose name is being withheld because of the nature of the crime, said to Enagbare, “You realize you raped me, right? The complaint states that he replied, “Yes. It was my fault.”

In addition, Enagbare faces a second set of accusations involved a 22-year-old woman who said he assaulted her while sleeping at his house on South Matlack Street on March 3, 2012. The woman said she had been drinking with Enagbare, a friend, and that after she fell asleep she woke up to finding him molesting her.

In a phone conversation afterwards, Enagbare allegedly told the woman that he “messed up. I made a move on you and I shouldn’t have.”